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Ms X, Partner, Y Solicitors and the Health Service Executive (FOI Act 2014)

Case Number: 170106

Whether the HSE has justified its refusal to grant access to records relevant to the applicant's request for detailed information about certain types of deliveries in Cork University Hospital (the Hospital) in 2014

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

Part 1 of the applicant's FOI request of 1 December 2016 asked for "all details of every nature and description" in relation to breech vaginal deliveries which took place at the Hospital in 2014, which it said should include:

a) the number of breech vaginal deliveries carried out in 2014 in total
b) the number of the foregoing that were twin/triplet/multiple deliveries
c) the number of the foregoing that were to primiparous women
d) the number of the foregoing that were to multiparous women
e) the number of these that were full-term deliveries
f) the number of these that were pre-term deliveries (including details of the gestation for these deliveries).

Part 2 asked for details as to the type of breech presentation (examples supplied) in respect of all breech vaginal deliveries which took place in 2014 at the Hospital,

The HSE's decision dated 19 December 2016 provided the details sought at items 1(a), 1(c) and 1(d) and said that it did not collate any of the other requested information. It also referred to section 15(1)(a) of the FOI Act, which applies where the record is not held or does not exist.

The applicant's internal review application of 4 January 2017 said that the relevant information could easily be ascertained by examining the relevant charts. The HSE's internal review decision of 9 February 2017 affirmed its refusal to grant access to further information. It said that section 41(1)(a) of the FOI Act applies, on the basis that disclosure of the relevant information was prohibited by the Data Protection Acts 1988 and 2003 because the patients concerned had not consented to their medical charts being accessed to extract that information.

The applicant sought a review by this Office of the HSE's decision on 27 February 2017.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the correspondence outlined above and to the correspondence between this Office and both the HSE and the applicant on the matter.

Scope of the Review

As set out in this Office's letter to the applicant of 21 April 2017, this review is concerned solely with whether or not the HSE has justified its refusal to grant access to the information sought at items 1(b), 1(e), 1(f) and 2 of her request.

Findings

While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices in certain circumstances. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

It is important to note that under section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

In this case, the applicant sought, at items 1(b), 1(e), 1(f) and 2 of her request, specific information relating to breech vaginal deliveries which took place at the Hospital in 2014. As such, her request must be taken as a request for access to records that would provide the applicant with the information that she seeks.

Are records held? Section 15(1)(a)
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. While the HSE provided the applicant with certain information that it had collated, its position in relation to the remaining parts of her request is that it did not collate this information and does not, therefore, hold discrete records containing the requested information. I note that the applicant has not disputed this.

The HSE acknowledged that the requested information may be obtained by examining and extracting information from the relevant patient medical records. However, it argued that this would amount to further processing of the patients' personal data in a way that is not compatible with what patients are told about the purposes for which their personal data may be used. It argued that it would need specific patient consent in order to extract the relevant data. It further argued that it would not be possible to restrict those staff responsible for dealing with the FOI request to extract just the requested information. Its position is that all of this would result in a breach of the Data Protection Act, and therefore that it is entitled to refuse the request under section 41(1)(a) of the FOI Act.

Before I consider the question of whether section 41(1)(a) might apply, I believe it would be useful to consider the HSE's acknowledgement that the relevant information may be contained in the patient medical records. Indeed, I note the applicant's argument that she is seeking information about "unnamed and unidentifiable deliveries" that "can easily be ascertained on perusal of the relevant charts" and that the extraction of such information is no different than what would be done in management audits.

As I have outlined above, the Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. As the applicant knows, the HSE says it does not collate the relevant information. In the circumstances, it appears that the information in question is held in hard copy files, rather than electronically. Accordingly, section 17(4) is not relevant in this case.

It is also relevant to consider the provisions of section 18 here. Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

More significantly, it seems to me that the primary purpose of section 18 is to ensure that FOI bodies do not refuse access to records to which access has been sought simply because they contain some exempt information, regardless of the extent of the exempt information. It is worth noting that the definition of an exempt record means a record to which access would be refused on the ground that one or more of the exemptions in Part 4 of the Act apply or on the ground that the Act does not apply to the particular record, under Part 5.

The information at issue is contained in patient medical files with other information that is outside the scope of this review, rather than with information that is exempt. I do not consider section 18 to impose an obligation on the HSE to extract the relevant information in such circumstances.

I have also considered the relevance of the manner in which a record is defined under the Act in this case. For the purposes of the Act, a record is defined as including a range of material such as books, other written or printed material in any form, maps, drawings, discs, tapes etc. It is also defined as including a copy or part of any such material. As such, I have considered whether it could reasonably be argued that a request for information such as the applicant's request could be described as a request for any part of any record that contains the information sought.

In my view, the answer to this question will generally depend upon the specific circumstances and the context in which the request falls to be considered. For example, it may be appropriate for a requester to seek access to a particular extract from the minutes of a meeting of an FOI body that concerns a particular subject matter. In such a case, the body should be in a position to readily identify the information sought, as a stand-alone piece of information. It is worth repeating that the Act provides for a right of access to records held and that there is an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis).

The fact that it may be reasonably straightforward to identify the files on which the requested information may be held in this case does not change the fact that there exist no discrete records containing that information.

To address the request would, in essence, require the processing of records to create a record that did not previously exist. While section 17(4) expressly requires FOI bodies to extract data held electronically, provided it can do so by taking reasonable steps, there is no express corresponding requirement to extract data where records are held in hard copy. This suggests to me that the Oireachtas did not intend that FOI bodies should be required to do so.

As with section 18, it seems to me that FOI bodies should take a reasonable and proportionate approach in determining whether to grant access to parts of records in order to address requests for information, as opposed to requests for specific, identified, records.

In this case, having regard to my finding that the HSE is not obliged to extract the relevant information and given also that it is not in dispute that the HSE does not collate the information sought, I find that the HSE was justified in refusing the relevant parts of the applicant's request under section 15(1)(a) on the ground that the records sought do not exist.

Given my finding that section 15(1)(a) applies, it is not necessary for me to proceed to consider whether section 41(1)(a) also applies. However, in view of the requirements that section 17(4) imposes on FOI bodies in respect of requests for data held electronically and the HSE submissions on the data protection issues, I will address briefly the contention that the HSE is prohibited from disclosing the records.

Section 41(1)(a) of the Act is a mandatory provision that applies where the disclosure of a record is prohibited by an enactment not specified in the Third Schedule to the FOI Act. The HSE's claim for exemption under this provision is based on section 2(1)(c)(ii) of the Data Protection Act 1988 (as amended) (the DP Act), which is not specified in the Third Schedule to the FOI Act, and which provides that data "shall not be further processed in a manner incompatible with that purpose or those purposes". The "purposes" concerned are, further to section 2(1)(c)(i) of the DP Act, the "specified, explicit and legitimate purposes" for which the data was obtained.

Section 8(e) of the DP Act provides that any restrictions in the Act on the processing of personal data do not apply if the processing is "required by or under any enactment". Section 11 of the FOI Act creates a right of access to certain records subject to the other provisions of the Act. It follows that any restriction contained in the DP Act on further processing of the requested information does not apply if a right of access to the information at issue exists under the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's refusal to fully grant the applicant's request under section 15(1)(a), on the grounds that the requested records do not exist.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.


Elizabeth Dolan
Senior Investigator